ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §61-2-90 (Supp. 2002) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp.
2002) for a contested case hearing. The Petitioner Greenwood Lodge No. 834, Loyal Order of
Moose, Inc. (Greenwood Moose Lodge) is a nonprofit civic service organization, affiliated with
the national Loyal Order of Moose, Inc. It seeks an on-premise beer and wine permit and a
nonprofit private club minibottle license. The Department of Revenue (Department) filed a
Motion to be Excused from the hearing; on the basis that but for the protests of the Protestants,
this permit would have been issued. This motion was denied by Order dated October 8, 2003.
The Protestants are: Barbara Holder, Bryant Kidd, Lynn Butler, Hazel Kidd, and Ruth
Butler. Mary Fain also filed a protest with the Department, but was not present at the hearing.
Because of this absence, her protest is deemed abandoned. In addition, Mrs. Grace Freeman filed
a protest, but died prior to the scheduled hearing. A hearing was held on this case on November
12, 2003, at the offices of the Division in Columbia, South Carolina. The parties and protestants
were present as shown above.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, Respondent and the Protestants.
2.The proposed location for the Greenwood Moose Lodge is 1315 Ninety Six
Highway, Greenwood, South Carolina. The Petitioner seeks an on-premise beer and wine permit
and a nonprofit private club minibottle license on behalf of a nonprofit organization. The
proposed hours of operation are Wednesday through Saturday, 6:30 PM to 12:00 AM. The
capacity of the club is 50–60 people. Membership is limited to members of the Loyal Order of
Moose, a national charitable and civic service organization.
3.The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
2002) concerning the residency and age of the Petitioner are properly established. Furthermore,
the Petitioner has not had a permit or license revoked within the last two years. Notice of the
application was also lawfully posted both at the location and in a newspaper of general
circulation. The State Law Enforcement Division’s background check on the principals of the
club did not find any criminal records.
4.The proposed location is not unreasonably close to any church or school. It is near
several homes and is on a major highway.
5. The club members plan to use the proceeds from the sale of alcohol at their club
to fund their service projects. Although they do plan to offer live music on Saturday evenings, the
proposed location has 4" thick masonry walls which will help control sound. The Petitioners
state that they will monitor the parking lot of the location to prevent loitering and to control
noise. In addition, they will construct a six foot tall privacy fence along their rear property line
which is between their building and the home of one of the Protestants, Mrs. Ruth Butler.
6.The Protestants’ objections to the Petitioner’s permit and license are based upon
the location of the Greenwood Moose Lodge and the Protestants’ moral opposition to the
consumption of alcohol. The Protestants feel that the proposed location may cause problems,
including noise, traffic, driving under the influence, alcohol consumption, fights, foul language and
disorderly conduct. However, there was no specific evidence offered to establish that the
Petitioner’s current location and club did not have a reputation for peace and good order.
Additionally, the Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer,
wine or alcohol, did not object to the granting of a permit or license in this case. Notably, no law
enforcement officials in the City or County of Greenwood protested this license and permit.I find the witnesses for the Petitioner credible. Their current location has not had any
disturbance service calls, and the Moose Lodge is a family-oriented, service organization.
Therefore, the applicants are fit and the proposed location is suitable for an on-premise beer and
wine permit and a nonprofit private club minibottle license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2002) specifically grants the Administrative Law
Judge Division the responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the
issuance of an on-premise beer and wine permit. Specifically, Section 61-4-520(1) provides in
part that to receive a beer and wine permit the Petitioner must show that "[t]he applicant, any
partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant
to be employed on the licensed premises are of good moral character."
3. In addition to the requirements set forth above, a license for the sale and
consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann.
§ 61-6-1820 (Supp. 2002) are met. That section requires that the principals and applicants must
not only be of good moral character, but they must also have a reputation for peace and good
order. Additionally, Section 61-6-1820 provides that a sale and consumption license shall not be
granted unless the proposed location meets the minimum distance requirements from churches,
schools, or playgrounds as set forth in S.C. Code Ann. §61-6-120 (Supp. 2002).
4.S.C. Code Ann. 61-6-20(6) (Supp. 2002) establishes that a nonprofit organization
is not open to the general public and only the members and guests of the club may consume
alcoholic beverages upon the premises.
5.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v.
Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981). As the trier of fact, the Administrative Law
Judge is authorized to determine the fitness or suitability of the Petitioner and the proposed
business location for a license or permit using broad, but not unbridled, discretion. Byers v.
South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984). The
determination of suitability of a location is not necessarily a function solely of geography. It
involves an infinite variety of considerations related to the nature and operations of the proposed
business and its impact upon the community within which it is to be located. Kearney v. Allen,
287 S.C. 324, 338 S.E. 2d 335 (1985).
6.Without sufficient evidence of a specific adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that a Protestant
objects to the issuance of a permit or license is not a sufficient reason by itself to deny the
application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors § 119 (1981).
7.It is relevant to determine whether the testimony in opposition to the granting of a
permit is based on opinions, generalities and conclusions, or whether the case is supported by
facts. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App.
1984). There were no specific concrete objections voiced by the Protestants with respect to the
Greenwood Moose Lodge or this particular location. Their objections were speculative and
addressed general concerns, such as the possibility of accidents caused by drunk drivers, and
religious and moral opposition. The Protestants’ convictions are strong; however, their
arguments do not rise to the level of adequate grounds to prevent issuance of the license.
Therefore, the Petitioner meets the statutory requirements for holding a beer and wine
permit and a nonprofit private club minibottle license as a nonprofit organization at the proposed
location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Greenwood Moose Lodge, for an on-premise beer and
wine permit and a nonprofit private club minibottle license as a nonprofit organization, be issued
upon payment of the required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 17, 2003
Columbia, South Carolina |
